Congressional Record: July 31, 2003 (Senate)
Page S10621-S10687
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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By Mr. BINGAMAN (for himself and Mr. Graham of Florida):
S. 1517. A bill to revoke and Executive Order relating to procedures
for the consideration of claims of constitutionally based privilege
against disclosure of Presidential records; to the Committee on
Governmental Affairs.
Mr. BINGAMAN. Mr. President, I rise today with my colleague from
Florida, Senator Graham, to introduce a very simple piece of
legislation that would revoke President Bush's Executive Order 13233
and put back in force President Reagan's Executive Order 12667--
restoring the American people's access to Presidential papers. This
bill is the companion to H.R. 1493, which is sponsored by
Representative Doug Ose and has enjoyed bipartisan support in the
House.
Twenty-five years ago, this body passed the Presidential Records Act
and declared that a President's papers were the property of the people
of the United States of America and were to be administered by the
National Archives and Records Administration, or NARA. The Act provided
that Presidential papers would be made available twelve years after a
President left office, allowing the former or incumbent President the
right to claim executive privilege for particularly sensitive
documents. In order to fulfill that mandate, President Reagan in 1989
signed Executive Order 12667, which gave the former or incumbent
President thirty days to claim executive privilege.
However, in 2001, President Bush signed Executive Order 13233,
nullifying President Reagan's order and imposing new regulations for
obtaining Presidential documents. President Bush's new order greatly
restricts access to Presidential papers by forcing all requests for
documents, no matter how innocuous, to be approved by both the former
President and current White House. In this way the order goes against
the letter and the spirit of the Presidential Records Act by requiring
the NARA to make a presumption of non-disclosure, thus allowing the
White House to prevent the release of records simply by inaction.
The President's order also limits what types of papers are available
by expanding the scope of executive privilege into new areas--namely
communications between the President and his advisors and legal advice
given to the President. Also, former Presidents can now designate third
parties to exercise executive privilege on their behalf, meaning that
Presidential papers could remain concealed many years after a
President's death. These expansions raise some serious constitutional
questions and cause unnecessary controversy that could end up
congesting our already overburdened courts. My legislation simply seeks
to restore a legitimate, streamlined means of carrying out this body's
wishes--making Presidential records available for examination by the
public and by Congress.
The administration shouldn't fear passage of this bill. Any documents
that contain sensitive national security information would remain
inaccessible, as would any documents pertaining to law enforcement or
the deliberative process of the executive branch. Executive privilege
for both former and current Presidents would still apply to any papers
the White House designates. With these safeguards in place, there is no
reason to further hinder access to documents that are in some cases
more than twenty years old.
By not passing this bill, the Congress would greatly limit its own
ability to investigate previous administrations, not to mention limit
the ability of historians and other interested parties to research the
past. Knowledge of the past enriches and informs our understanding of
the present, and by limiting our access to these documents we do both
ourselves and future generations a great disservice. Numerous
historians, journalists, archivists and other scholars have voiced
their disapproval of Executive Order 13233 because they understand how
important access to Presidential papers can be to accurately describing
and learning from past events. We here in the Congress cannot afford to
surrender our ability to investigate previous Presidential
administrations because doing so would remove a vitally important means
of ensuring Presidential accountability.
I believe it is time for these documents to become part of the public
record. I believe in open, honest, and accountable government, and I do
not believe in keeping secrets from the American people. The
Presidential Records Act was one of this country's most vital post-
Watergate reforms and it remains vitally important today. In these
times when trust in government is slipping more and more every day, we
need to send a statement to the American people that we here in
Washington don't need to hide from public scrutiny--that instead we
welcome and encourage public scrutiny. This bill will send just such a
message.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1517
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REVOCATION OF EXECUTIVE ORDER OF NOVEMBER 1, 2001.
Executive Order number 13233, dated November 1, 2001 (66
Fed. Reg. 56025), shall have no force or effect, and
Executive Order number 12667, dated January 18, 1989 (54 Fed.
Reg. 3403), shall apply by its terms.
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